Citation Nr: 0615602
Decision Date: 05/26/06 Archive Date: 06/06/06
DOCKET NO. 03-18 546 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Michael A. Pappas, Counsel
INTRODUCTION
The veteran-appellant served on active duty from July 1963 to
July 1967.
When this matter was last before the Board of Veterans'
Appeals (Board) in March 2005, it was remanded to the
Department of Veterans Affairs (VA), Detroit, Michigan,
Regional Office (RO) for additional development and
readjudication. Following the completion of the requested
development, the case returns to the Board for appellate
review.
FINDINGS OF FACT
1. All evidence necessary for review of the issue on appeal
herein has been obtained, and VA has satisfied the duty to
notify the veteran of the law and regulations applicable to
the claim and the evidence necessary to substantiate it.
2. The veteran is not shown to have post-traumatic stress
disorder.
CONCLUSION OF LAW
Post-traumatic stress disorder was not incurred in or
aggravated by the veteran's active duty service. 38 U.S.C.A.
§§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159,
3.303, 3.304(f) (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant is seeking service connection for post-
traumatic stress disorder. He claims that combat experiences
in service resulted in post-traumatic stress disorder. He
argues that he is entitled to service connection on that
basis.
In the interest of clarity, the Board will initially address
the matter of whether this case has been appropriately
developed for appellate purposes. Thereafter, the Board will
analyze the appellant's claims.
Veterans Claims Assistance Act of 2000
VA's Duties to Notify and Assist the Claimant
The Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000) (VCAA) redefines the obligations
of VA with respect to the duty to assist and includes an
enhanced duty to notify a claimant as to the information and
evidence necessary to substantiate a claim for VA benefits.
38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005); 38
C.F.R. § 3.159 (2005). VA is required to provide the
claimant with notice of what information or evidence is to be
provided by the Secretary and what information or evidence is
to be provided by the claimant with respect to the
information and evidence necessary to substantiate the claim
for VA benefits. Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002).
The Board finds that VA's enhanced duty to notify under the
VCAA has been met. In correspondence dated in April 2002 and
April 2005, the RO advised the veteran of VA's duties under
the VCAA and the delegation of responsibility between VA and
the veteran in procuring the evidence relevant to his claim,
including which portion of the information and evidence was
to be provided by the veteran and which portion VA would
attempt to obtain on behalf of the veteran. Quartuccio,
16 Vet. App. at 187.
In this regard, the Board notes that the RO provided the
veteran with a copy of the June 2002 rating decision, June
2003 statement of the case, March 2005 Board remand, and
January 2006 supplemental statement of the case, which
included a discussion of the facts of the claim, notification
of the basis of the decision, and a summary of the evidence
used to reach that decision. The June 2003 statement of the
case and January 2006 supplemental statement of the case
provided the veteran with notice of all the laws and
regulations pertinent to his claim and those pertinent to the
implementation of the VCAA.
In that regard, it is also noted that during the course of
this appeal, the United States Court of Appeals for Veterans
Claims (Court or CAVC) handed down Pelegrini v. Principi, 18
Vet. App. 112 (2004) (Pelegrini II). In Pelegrini II, the
Court reaffirmed that the enhanced duty to notify provisions
under the VCAA should be met prior to an initial unfavorable
agency of original jurisdiction (AOJ) decision on the claim.
In the instant appeal, the Board finds that any defect with
respect to the timing of the VCAA notice requirement was
harmless error. While the notice provided to the veteran in
April 2002 was given prior to the first AOJ adjudication of
the claim, it did not provide the veteran with all of the
information regarding the evidence necessary to establish a
claim for service connection in as complete a manner as the
April 2005 letter. Notwithstanding, the notices were
provided by the AOJ prior to the transfer and certification
of the veteran's case to the Board. The veteran has been
provided with every opportunity to submit evidence and
argument in support of his claim and to respond to VA
notices. Therefore, to decide the appeal would not be
prejudicial error to the veteran.
The Board also notes that the April 2005 VCAA notice
contained a specific request for the veteran to provide any
evidence in the veteran's possession that pertained to the
claim. 38 C.F.R. § 3.159(b)(1) (2005). Although the
foregoing notice post-dated the initial rating action, such
notice to the veteran can be considered satisfactory since it
properly conveyed to the veteran the essence of the
regulation. Mayfield v. Nicholson, 19 Vet. App. 103 (2005),
reversed on other grounds, No. 05-7157 (Fed. Cir. April 5,
2006).
Moreover, throughout the course of this appeal, the RO in
various correspondence, including the rating decision and
statement of the case, asked the veteran for all the
information and evidence necessary to substantiate his claim
- that is, evidence of the type that should be considered by
VA in assessing his claim. A generalized request in the
initial VCAA notice for any other evidence pertaining to the
claim would have been superfluous and unlikely to lead to the
submission of additional pertinent evidence. Therefore, it
can be concluded, based on the particular facts and
circumstances of the case, the omission of the request for
"any evidence in the claimant's possession that pertains to
the claim" in the initial notice did not harm the veteran,
and it would be legally proper to render a decision in the
case without further notice under the regulation. Id.
The Board also concludes that the requirements of the notice
provisions of the VCAA have been met, and there is no
outstanding duty to inform the veteran that any additional
information or evidence is needed. Quartuccio, 16 Vet. App.
at 187.
In regard to VA's duty to assist, the Board notes that the RO
afforded the veteran a pertinent VA examination in December
2005. The report of the examination looks complete on its
face. Probative opinions were offered, and the rationales
for the opinions were provided. There is no indication that
additional examination is necessary for the fair adjudication
of the veteran's claim. 38 U.S.C.A. § 5103A.
The veteran has not made the RO or the Board aware of any
other evidence relevant to his appeal that needs to be
obtained. It does not appear that there are any additional
pertinent treatment records to be requested or obtained.
Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the veteran in developing the facts
pertinent to his claim of entitlement to service connection
for post-traumatic stress disorder.
Finally, it is noted that during the pendency of this appeal,
the United States Court of Appeals for Veterans Claims
(Court) issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2005) apply
to all five elements of a service connection claim, including
the degree of disability and the effective date of an award.
In the present appeal, the appellant was provided with notice
of what type of information and evidence was needed to
substantiate his claim for service connection, but he was not
provided with notice of the type of evidence necessary to
establish a disability rating or an effective date for the
award of service connection as currently on appeal. As this
decision results in the denial of the veteran's claim for
entitlement to service connection, however, the question of
whether the veteran has been properly notified as to the
provisions regarding the degree of disability and the
effective date of an award is rendered moot. Accordingly,
the Board will proceed with appellate review.
Analysis
Service connection may be granted for disability resulting
from a disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1110 (West 2002).
The veteran does not claim that he had post-traumatic stress
disorder during service, nor is there evidence supporting
such an allegation. Rather, it is the veteran's implicit
contention that he experienced traumatic events during
service related to combat experiences in the Republic of
Vietnam during the Vietnam War era, and that these stressful
events are responsible for his post-traumatic stress
disorder.
VA regulations recognize that symptoms attributable to post-
traumatic stress disorder often do not appear in service.
Service connection for post-traumatic stress disorder
requires (1) medical evidence establishing a diagnosis of the
condition in accordance with 38 C.F.R. § 4.125(a) (presumed
to include the adequacy of the post-traumatic stress disorder
symptomatology and the sufficiency of a claimed in-service
stressor), (2) credible supporting evidence that the claimed
in-service stressor occurred, and (3) a link, established by
medical evidence, between current symptomatology and the
claimed in-service stressor. 38 C.F.R. § 3.304(f) (2005);
Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Samuels v.
West, 11 Vet. App. 433, 435 (1998).
With regard to the second element, the evidence necessary to
establish that the claimed stressor actually occurred varies
depending on whether it can be determined that the veteran
"engaged in combat with the enemy." 38 U.S.C.A. § 1154(b)
(West 2002). The Court has held that "[w]here it is
determined, through recognized military citations or other
supportive evidence, that the veteran was engaged in combat
with the enemy and the claimed stressors are related to such
combat, the veteran's lay testimony regarding claimed
stressors must be accepted as conclusive as to their actual
occurrence and no further development for corroborative
evidence will be required, provided that the veteran's
testimony is found to be 'satisfactory,' e.g., credible, and
'consistent with the circumstances, conditions, or hardships
of [combat] service'." Zarycki v. Brown, 6 Vet. App. 91, 98
(1993); 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. §
3.304(d), (f) (1998); see also Gaines v. West, 11 Vet. App.
113 (1998) (determination of whether veteran engaged in
combat with enemy is particularly significant in post-
traumatic stress disorder cases).
However, if the "claimed stressor is not combat related, a
veteran's lay testimony regarding in-service stressors is
insufficient to establish the occurrence of the stressor and
must be corroborated by 'credible supporting evidence'."
Cohen, 10 Vet. App. at 142 (citing Moreau v. Brown, 9 Vet.
App. 389, 395 (1996); Doran v. Brown, 6 Vet. App. 283
(1994)).
The Board recognizes the veteran's receipt of both the Purple
Heart award and the Combat Infantryman Badge and would
concede that these awards are conclusive evidence of the
veteran having experienced an inservice stressor in
accordance with 38 C.F.R. § 4.125. The veteran's claim,
however, turns instead upon the threshold question of whether
there is a current diagnosis of post-traumatic stress
disorder. As explained in detail below, the Board finds that
there is no such evidence.
As noted previously, service connection for post-traumatic
stress disorder requires three elements: (1) a current
medical diagnosis, (2) credible supporting evidence that the
claimed in-service stressor occurred; and (3) medical
evidence of a causal nexus between current symptomatology and
the in-service stressor. The Board has reviewed the record
in its entirety. It is significant that the record contains
no instance in which there was a diagnosis of post-traumatic
stress disorder in the past, nor is there the current
indication that the veteran has post-traumatic stress
disorder.
The post-service VA medical records document the psychiatric
treatment of the veteran on several occasions from September
2000 to August 2003, resulting in various diagnoses,
including anxiety, rule out panic disorder, depression and
insomnia. In no instance was post-traumatic stress disorder
diagnosed. Moreover, an October 2001 mental status
examination included a post-traumatic stress disorder
screening that was found to have been negative. The
resulting diagnoses were anxiety and rule out panic disorder.
Significantly, the veteran underwent VA psychiatric
examination in December 2005, for the express purpose of
determining whether he has post-traumatic stress disorder
that could be related to service. The mental health
professional conducting the examination had the benefit of
the review of the veteran's claims folder, and presented the
findings in a well documented and thorough manner, that
included reasons and bases for the conclusions reached. The
evaluation included a detailed review of the veteran's
history, including his military history. The examination
report also contained the results of detailed interviews.
The diagnoses that were made following the examination were
anxiety disorder due to medical condition; post-traumatic
stress disorder by history; and alcohol/substance dependence
in remission. The examiner summarized the report by stating
that the veteran has a documented history of post-traumatic
stress disorder, but then stated that "there is no evidence
at the present time that the veteran meets the criteria for
post-traumatic stress disorder." It is noted that the VA
examiner did not elaborate as to the basis for the reference
to the veteran's "documented history of post-traumatic
stress disorder." Gleaning that history from the text of
the December 2005 VA examination report would require
conjecture. There are references in that text to
documentation in 1966 of such symptomatology as dreams,
fears, and hypervigilance resulting in a diagnosis of
psychotic reaction. Critically, however, a current diagnosis
of post-traumatic stress disorder was not made in the
December 2005 VA examination report.
In essence, there is no competent medical evidence that the
veteran currently has post-traumatic stress disorder.
Congress specifically limits entitlement for service-
connected disease or injury to cases where such incidents
have resulted in a disability. In other words, service
connection is granted only for disability, not on the basis
of the symptoms of a disability. See 38 U.S.C.A. §§ 1110,
1131 (West 1991); 38 C.F.R. § 3.303; Brammer v. Derwinski, 3
Vet. App. 223 (1992). Service connection cannot be granted
for post-traumatic stress disorder where, as in the present
case, the preponderance of the evidence fails to demonstrate
that the veteran currently has such a disability. The
criteria for a valid claim for post-traumatic stress
disorder, therefore, have not been met in this case. In the
absence of proof of a present disability, there can be no
valid claim. Brammer at 225 (1992).
While the Board is sympathetic to the veteran's assertions
that he currently has post-traumatic stress disorder, he is
not qualified to render a medical opinion and his statements
cannot serve as competent medical evidence of a current
diagnosis of that disorder. Espiritu v. Derwinski, 2 Vet.
App. 492 (1992). However, if the veteran is hereafter
diagnosed with post-traumatic stress disorder, he is free to
resubmit his claim of service connection. Until then, in the
absence of competent medical evidence presently demonstrating
post-traumatic stress disorder, the claim of service
connection for that disorder must be denied. 38 U.S.C.A.
§ 5107.
Pursuant to 38 U.S.C.A. § 5107, where, after review of all
the evidence, there is an approximate balance of positive and
negative evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
In this case, the Board finds that there is no approximate
balance of the positive and negative evidence as to whether
the veteran currently has post-traumatic stress disorder.
Clearly, the preponderance of the evidence is against the
claim. Thus, the Board concludes that the veteran's claim
for service connection for post-traumatic stress disorder
must be denied.
ORDER
Entitlement to service connection for post-traumatic stress
disorder is denied.
____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs